Ontario Nurses' Association v. Women's College Hospital, 1990 CanLII 3994

0008-89; 0011-89: Ontario Nurses' Association, Applicant v. Women's College Hospital Respondent; Women's College Hospital, Applicant v. Ontario Nurses' Association, Respondent

Before : Raphael Palumbo, Vice-Chair; Susan Genge and Sharon Laing, Members

Appearances: Mary Cornish, Felicity Briggs, Valerie MacDonald and Lori Newton for Ontario Nurses' Association; Janice Baker for Women's College Hospital; Anneli LeGault and Don King for Peat Marwick, Stevenson, Kellogg

Reconsideration

The clear implication of ss.30(1) of the Act is that decisions of the Tribunal are meant to be final. Under ss.30(2) the Tribunal has discretion to reconsider its decisions. This discretion should only be exercised where there are compelling and extraordinary circumstances. Otherwise, the goals of finality and expedition will be jeopardized. In answeringthisquestion,theTribunalwillconsiderthefollowing factors: whether there was evidence available at the time of the hearing which was not presented because it was unavailable and which is likely to make a substantial difference to the outcome; whether there has been a change in circumstances since the decision such that the decision should not stand; and, whether the decision is wrong in law. The Tribunal refused to reconsider.

Réexamen

La conséquence évidente du paragraphe 30(1) de la Loi est que les décisions du Tribunal sont définitives. En vertu du paragraphe 30(2), le Tribunal jouit du pouvoir discrétionnaire de réexaminer ses decisions. Ce pouvoir ne devrait être exercé que si des circonstances extraordinaires le justifient sinon les objectifs concernant le caractère définitif et diligent des travaux du Tribunal seront compromis. L'étude de la jurisprudence révèle que la meilleure façon de résumer les principes et les tests élaborés dans d'autres contextes est de poser la question suivante: «Existe-t-il une raison de revenir sur cette cause qui a déjà fait l'objet d'une décision devant être définitive?» La réponse à cette question peut tenir compte des facteurs suivants: existait-t-il des preuves disponibles lors de l'audience qui n'ont pas été présentées parce qu'elles n'étaient pas disponibles et qui sont susceptibles de modifier considérablement l'issue de l'instance; des changements sont-ils survenus mettant fin à la validité de la décision; la décision est-elle erronée du point de vue du droit. Le Tribunal n'a pas accueilli la requête en réexamen de sa décision antérieure.

DECISION OF R. PALUMBO, VICE-CHAIR, AND MEMBER, S. GENGE, JANUARY 9, 1990

1By letter dated October 31, 1989 Counsel for Peat Marwick, Stevenson & Kellogg (formerly Stevenson, Kellogg, Ernst & Whinney, herein referred to as "Peat Marwick") made a request pursuant to Rule 13 of the Tribunal's Rules ofPracticeforreconsiderationof the Tribunal's unanimous decision dated October 17, 1989 [now reported as Women's College Hospital (No.1) (1990) 1 P.E.R. 53. By that decision, the Tribunal refused Peat Marwick's application for intervenor party status in Application Numbers0008-89and0011-89betweentheOntarioNurses'Association("ONA") and Women'sCollege Hospital. The Tribunal's reasons for its decisions were released on November 15, 1989.

2. The reconsideration application was heard by the Tribunal on December 20, 1989. Prior to hearing argument on that application, the Tribunal heard submissions on December 18, 1989 regarding certain procedural motions brought by ONA. In its Ruling dated December 19, 1989, the Tribunal made the following decisions:

(i) Application Numbers 0008-89 and 0011-89 between ONA and Women's College Hospital will be heard together with Application Numbers 0018-89 and 0034-89 between ONA and Sunnybrook Medical Centre and Application Numbers 0029-89 and 0036-89 between ONA and North York General Hospital.

(ii) Ten other Applications filed by ONA with the Tribunal following the decision of October 17, 1989 were adjourned sine die. These Applications involved ONA and the following Hospitals: Winchester District Memorial Hospital, Riverside District Memorial Hospital, Salvation Army Grace Hospital, Smith Falls Community Hospital, Children's Hospital of Eastern Ontario, Brockville General Hospital, Kemptville District Hospital, The Metropolitan General Hospital, Queensway General Hospital, and Lennox and Addington County General Hospital.

(iii) SubsequentApplicationsfiledwiththeTribunalconcerningmatterssimilartothose raised in the Applications referred to in sub-paragraph (ii) above would be dealt with by the Tribunal on an individual basis.

2In each Application referred toabove,ONAallegedthattheRespondentHospitalhad,amongother things, breached the Pay Equity Act, 1987 R.S.O. 1980 c. 34 (the "Act") by proposing a gender-biased comparison system and pay equity plan.

4. The Tribunal's jurisdiction to reconsider its decisions is found in subsection 30(2) of the Act:

30(2) The Hearings Tribunal may at any time, if it considers it advisable to do so, reconsider a decision or order made by it and vary or revoke the order.

5. The Act also contains a strong privative clause. Subsection 30(1) provides as follows:

30(1) The Hearings Tribunal has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Hearings Tribunal thereon is final and conclusive for all purposes.

3The clear implication from the wording of subsection 30(1) is that decisions of the Tribunal are meant to be final. Nevertheless, the enactment of subsection 30(2) is a recognition that in certain circumstances itmaybeappropriateforthe Tribunaltoreconsideritsdecisionsororders. However, this will happen only where the Tribunal "considers it advisable to do so". In other words, a party is not entitled as of right to a reconsideration of a Tribunal decision. Rather, a discretion lies with the Tribunal to reconsider a particular decision.

4In our view,theTribunal'sdiscretiontoreconsideradecisionoughttobe exercised only where there are compelling and extraordinary circumstances which make it appropriate to do so. To hold otherwise wouldbetojeopardizethe Tribunal's goal of bringingfinalitytomattersinanexpeditiousmanner. It is also important to recognize that the labour relations community has an expectation that the Tribunal will be consistent in its decisions and will bring finality to matters which come before it.

5At the hearing, counsel reviewed the principles adopted by other boards and tribunals regarding their reconsideration provisions. We found the practices followed by the Ontario Labour Relations Board ("OLRB") and the Workers' Compensation Appeals Tribunal ("WCAT") to be particularly helpful. The language of the statutory provisions under which they operate is similar to that found in subsection 30(2) of the Act. The Labour Board and Workers' Compensation Appeals Tribunal jurisprudence is set out below:

(i) The Ontario Labour Relations Board

9. In ImperialTobacco, [1974] OLRB Rep. Sept. 609, the Ontario Labour Relations Board stated at page 609:

However, this jurisdiction is very carefully and cautiously exercised by the Board in that free recourse to the Board after the initial disposition of a matter would substantially undermine thosevaluesof speed and economyassociatedwiththe administrative practice ofthis Board. In otherwords, exceptforexceptionalcircumstances,litigationbetweenthe partiesought not to be prolonged. This principle wasapproved ofinInternationalNickel.

10. In K-Mart Canada Limited Peterborough, [1981] OLRB Rep. February 185, the Board stated at page 185:

To avoid abuse of the reconsideration provision and bringsome finalityto its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intendsto adduce newevidencewhichwasnotpreviouslyavailable to thembythe exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generallyrestricted to allowing apartyto adduce evidenceor makerepresentations which itdidnothaveaprevious opportunity to raise. The Board mayalsoconsidersuchfactors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened.

2 In John Entwhistle Construction Limited, [1979] OLRB Rep. November 1096, the Board once again reviewed the basis upon which it will reconsider a decision. At page 1097 the Board stated:

The Board exercisesitsjurisdictionundersection95 (1) of the Actto reconsiderand vary or revoke any decision with care and caution in order not to undermine the finality of its

decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:

Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations orobjections notalreadyconsideredbythe Board thathe had no opportunity to raise previously.

(ii) Workers' Compensation Appeals Tribunal

12. The leading WCAT decision on reconsideration is Decision No. 7282 (December, 1986). Inthat case, the Panel hearing the reconsideration application stated at pages 14-15:

Our consideration of the various tests proposed leads us to suggest two questions which can be put in non-legal language which need "yes" answers before the idea of granting a hearing for reconsideration should be considered any further. These are:

1 Is there any reason to believe there is something wrong with the original decision?

2 Would the reasons given bythepersonwantingthe reconsideration make the result different?

If both those questions receive a "yes" answer then it would be necessarytoask what difference it would make. Those specific things should then be looked at in some detail to see if they are sufficiently exceptionalwhenbalancedagainstthe importance of decisions being final or allegedprejudiceto one side or the other to indicate the previous decision should be re-opened.

13. In WCAT Decision No. 339 (September, 1986), the Panel stated at pages 1-2:

Because of the intended finality of the decision-making process, it is our view that reconsiderationrequestsmaybegrantedonlyinexceptionalcircumstances. Such requests are not "as of right" and are not equivalent to an appeal.

The questionofwhat constitutes "exceptional circumstances" is one thatwilldevelopover time from individual cases. Generally, however, it may be that circumstances that will constitute grounds for the Tribunal to grant reconsideration requests are circumstances where for example, important new evidence becomes available that was not available, for substantialreasons,atthe hearingor thereisanundisputed error of fact in the decision, or a clear error of law.

14. In our view, the principles and tests adopted by the Labour Board and WCAT can be best summarizedbyaskingthe questionposed bythe PanelinWCAT Decision 7282atpage 18 ofitsdecision: "is there some reason to interfere in this case which has already received a decision which was intended to be final?" In answering this question we believe that the following factors may be useful:

(i) Was there evidence at the time of the hearing that was not presented because it wasunavailable to the partyaskingforreconsideration, andwhichislikelyto make a substantial difference to the outcome of the case?

(ii) Sincethedecision,hastherebeenachangeincircumstancessuchthatthe decision should not stand?

(iii) Is the decision wrong in law?

1 The Tribunal considered Peat Marwick's request for reconsideration in light of the above-noted factorsand weare ofthe opinionthatreconsiderationofour decisionofOctober 17,1989 is inappropriate in the circumstances of this case. Nevertheless, we wish to review briefly the grounds upon which Peat Marwick bases its application.

2 Counsel for Peat Marwick, Ms LeGault, submitted that since the initial September 13, 1989 hearing date there have been some very significant developments which make it appropriate for the Tribunal to reconsider its decision of October 17, 1989. She submitted that the Applications filed by ONA against the various Hospitals noted above, all state that the Aiken Plan is so fundamentally flawed that it is not appropriate for pay equity negotiations. Therefore, the issue in those cases is focused on the Aiken Plan itself. She contended that the focus of ONA's Application in the Women's College Hospital case is not, as the Tribunal has found,the proposalput forward by the Hospital regarding a comparison system to be used in preparing a pay equity plan, but rather the Aiken Plan itself. Ms LeGault argued that since the Tribunal's decision was so clearly predicated on the fact that ONA's complaint involved the proposals made by Women's College Hospital, there is reason to believe that the decision could be wrong.

3 In our reasons dated November 15, 1989, we stated at paragraph 81 that "the issue before the Tribunal in this case is the gender neutrality of the proposals put forward by the Hospital regarding the comparisonsystemtobeusedtoevaluatethejobsinthatparticularworkplace. The issue is not the gender neutrality of the Aiken Plan." We based our decision on the specific language of subsections 14(1) and 14(2)(a) which focuses on the negotiation of a "gender neutral comparison system" rather than on any specific job evaluation plan. The language of subsections 14(1) and (2)(a) has not changed, the written reasons found at paragraph 77 of our decision ofNovember15, 1989stillhold,and thereforethe issue in this case remains the gender neutrality of the proposals put forwardbyWomen'sCollege Hospitaland not the gender neutrality of the Aiken Plan.

18. In our view, the fact that ONA has decided to bring further Applications to the Tribunal against other Hospitals doesnotchangewhattheissueisintheWomen'sCollegeHospitalcase. Admittedly, there may be a perception that ONA is attacking the Aiken Plan in general rather than focusing on individual workplaces and the comparison system to be applied to them. Indeed, both Ms LeGault and Ms Baker, CounselforWomen'sCollege Hospital, made much of the language usedbyONAintheirpleadings. For example,theyreferredto ONA'scombinedResponseand Replyinthe SunnybrookMedicalCentrecase. At paragraph 3 ONA states:

Further, ONA is of the view that the SKEW methodology is so fundamentally flawed that it is not appropriate for negotiations to focus on its amendment but rather should focus on agreeing on a different comparisonsystem. We understand that SKEW will not permit its system to be substantially amended. See Schedule "A" to the document for an outline of ONA's concerns with respect to SKEW.

4 Ms Baker submitted that this statement is also found in other Replies filed by ONA and belies ONA's original submissions that the issue ofgeneralneutrality is strictly between ONA and the employer Hospital in each case.

5 It appears from the various Applications filed by ONA that in each case the proposal put forward by the Hospital is based on the job evaluation plan or methodology supplied by Peat Marwick. Ms Cornish submitted that the methodology in question is being attacked because the employer Hospital in each case is putting forward a methodology which ONA believes is gender-biased. In other words, the employerHospitals have proposed a particular comparison system whichONAbelievesisfundamentally flawed and in each case ONA has attacked it as being gender-biased.

6In our view, the focus in each case ought to be on the particular proposal tabled by the employer Hospital at the bargaining table, because it is the employer who has rights and obligations under the Act. We should indicate that even if ONA's intention is to attack the Aiken Plan in general, we have made it abundantly clear that that is not the issue in the Women's College Hospital case. Contrary to the position taken by Tribunal Member Laing in paragraph 12 ofherdissent,wedo not recognize that the issue in the caseistheAikenPlaningeneral. We wish to emphasize that point. Our decision on the merits in this case will focus on the particular workplace and any remedy given to any party in this case will be restricted to the particular circumstances found at Women's College Hospital.

7Ms LeGault further submitted that the Tribunal's decision denying party status has had an unanticipated or unintended consequence on Peat Marwick. The numerous new Applications filed by ONAwhichdealwiththeAikenPlanwerenotanticipatedatthetimeof the hearing. Shearguedthatsince all the Applications are addressed to the Aiken Plan as the fundamental and key issue, and the link in all Applications, the consultant should be permitted to participate in the proceedings.

8In our view, Peat Marwick's view of the magnitude of the issue in dispute in this case was before the Tribunal at the September 13, 1989 hearing date. Certainly, Ms LeGault argued at that time that a decision by the Panel would not be limited to the Women's College Hospitalworkplace. As well, in Peat Marwick's Response to ONA's Application against Women's College Hospital, Peat Marwick clearly stated that a decision by the Tribunal in this case would affect it province-wide since the Aiken plan is in use in over 100 Ontario hospitals. She further submitted at the hearing that if Peat Marwick was added as aparty intervenor, it would ensure that the issues arising out of the Aiken Plan would bedealt withand that further complaints by ONA against other hospitals could be avoided with respect to those issues.

24. While it is true that ONA did not file its Applications against the various Hospitals noted earlier until after the September 13, 1989 hearing date, nevertheless the Tribunal was informed of Peat Marwick's position on the impact a decision in this case would have on both Peat Marwick and employer Hospitals

which are using the Aiken Plan. In our view, this is not a new fact or event which Peat Marwick was unable to argue at the original hearing.

9Ms LeGault further argued that the decision of October 17, 1989 and the reasons issued on November15,1989 set outafundamentalandnewpolicyregardingintervention. With respect, this Panel was guided by the Ruling of the Tribunal in the Haldimand-Norfolk case dated June 26, 1989. In that case a consulting firm, William M. Mercer Ltd., was not permitted to intervene on the basis that the issue before the Tribunal was the gender-neutrality of the proposals put forward by the employer. In our view, therefore, this Panel did not establish a new policy on intervention but rather followed what has been Tribunal policy since June,1989. Even so, we did not follow that policy blindly but examined whether in the circumstances of this case Peat Marwick should be allowed to intervene in these proceedings. While thatpolicyisa major statement on intervention before Tribunal proceedings, we are not persuaded that it must be re-examined in this case. There must be compelling reasons to depart from that policy.

10Ms LeGault also submitted that the Tribunal has added other parties and intervenors in other proceedings before the Tribunal. In the Haldimand-Norfolk (No. 1) (1990), 1 P.E.R. 1, Metropolitan Toronto Library Board (1990), 1 P.E.R. 112 and Middlesex and London (1990), 1 P.E.R. 89 cases, the issue before the Tribunal was the identity of the employer in each case. That type of case is fundamentally and qualitatively different than this case. Subsection 32(1) of the Act specifies that the "employer"isapartytoproceedingsbeforetheTribunal. In the employer cases, the object is to determine whotheemployerisandthereforewho the party before the Tribunal is. It is thereforenotunusualtohave several participants in the proceedings for the purposes of determining who the employer is. Employer cases are also different than the case before us inthatthe inquiryisessentiallyapreliminarymatter; that is, it is only after an employer is identified that it has rights or obligations under the Act.

11Ms Baker referred the Tribunal to the Wentworth County Board of Education (1990), 1 P.E.R. 132]case. The Panel hearing that case allowed the Ontario SecondarySchoolTeachersFederation(the "OSSTF")tointerveneandparticipateonalimitedbasisin the proceedings. In that case, thePanelissued on oral Ruling in which they stated that the OSSTF was neither a party under section 32(1) of the Pay EquityAct,1987, norweretheya party under section 5 ofthe Statutory Power Procedure Act, R.S.O. 1980, c.484. Nevertheless, the majority allowed OSSTF to participate in the proceedings with respect to the historical development of the payment of teachers. No written reasons have yet been issued for this decision and therefore that case is not helpful in the matter before us.

28. Ms LeGault submitted that subsequent to the September 13, 1989 hearing date, the Divisional Court heard a motion brought by the Metropolitan Toronto Board of Commissioners of Police and the Municipal Police Authorities seeking interventionina judicial review application between the Haldimand-Norfolk RegionalBoard ofCommissionersofPoliceand the RegionalMunicipalityof Haldimand-Norfolk and the Ontario Nurses' Associationand the PayEquityHearings Tribunal[nowreported as Haldimand-Norfolk and Ontario Nurses' Association, Re (1990), 1 P.E.R. 188 (Ont. Div. Ct.)] Both applications were granted by the Court. Ms LeGault submitted that the Court applied the provisions of Rule 13 of the Rules of Civil Procedure and permitted the intervention because both applicants had an interest in the subject matter of the litigation and they could be adversely affectedbyajudgement. She also argued that

in all likelihood Peat Marwick would obtain standing in this case if it were to proceed toDivisionalCourt on a judicial review application.

12In our view, the Tribunal has already dealt with the Divisional Court jurisprudence in our reasons. The intervention application in the Haidimand-Norfolk proceedings do not add anything that was not argued at the September 13, 1989 hearing. Furthermore, the decision of Mr. Justice O'Leary is not helpful inthatthereasonsgiven for permitting intervention are very sparse. Finally,Rule13doesnotapplytothis Tribunal.

13Ms LeGault argued that another exceptional factor in this case is that the Tribunal's reasons dated November15, 1989involved the interpretationofanexternallaw, the Statutory Powers Procedure Act, and thus raises a legal issue. She also argued that section 5 of that statute was not fully argued by all the parties. She submitted that all three parties assumed that the Tribunal has jurisdiction to add parties and intervenorswhereasthe Tribunalinitsdecision has decided that it does not have thatpower undersection 5 of the Statutory Powers Procedure Act.

14Ms Baker submitted that the Tribunal in its reasons dated November 15, 1989 concluded that it does not have the power to add parties either pursuant tosection5 of the Statutory Powers Procedure Act nor section 29 of the Pay Equity Act, 1987. She further submitted that this was a very major issue of Tribunal policy and procedure.

15With respect, it is our view that section 5 of the Statutory Powers Procedure Act was fully argued before the Tribunal at the hearing. The various interpretations of that provision were provided to the Tribunal and that is reflected in paragraphs 44 to 54 of our reasons. In our view it was not necessary to come to a definitive conclusion on the meaning of section 5ofthe Statutory Powers Procedure Act. In reviewing section 5, the Tribunal applied both interpretations submitted to us by Counsel and found that in neither case was it appropriate for Peat Marwick to be permitted to intervene in these proceedings. Finally, it is our view that our interpretation of section 29 of the Pay Equity Act, 1987 contained in paragraph 40 of our reasons is correct in law.

16Therefore, in light of all of the foregoing, Peat Marwick's request for reconsideration of our decision dated October 17, 1989 is denied.

17We wish to thank all Counsel for their very able and helpful submissions.

DECISION OF TRIBUNAL MEMBER SHARON LAING, JANUARY 9, 1990

1 I dissent from the majority on the key finding that reconsideration of the Tribunal's decision denying PeatMarwick'sapplicationtointerveneisinappropriateinthiscase. In my view, there has been a sufficient change in circumstances to justify reconsidering that decision. To accept what the majority has found is to dismiss the significance of the events which have occurred since the original application was heard.

2. Before turning to the primary focus of my disagreement, I would like to record my objection to the majority'spositionontheTribunal'spolicyregardingintervention. The majority states at paragraph 25, that

there has been in place "a major statement on interventionbeforeTribunalproceedings". They rely on the oral Ruling in the Haldimand-Norfolk case dated June 26, 1989 to demonstrate this. There is nothing in the Ruling that suggests that that panel canvassed or turned its mind to policy considerations concerning intervention. In addition, I note that the panel hearing the Wentworth County Board of Education application (Tribunal File 0004-89) permitted an intervenor to participate in the hearing. Clearly, no definitive policy position is apparent from these disparate results. Be that as it may, I turn now to a consideration of the approach developed by the majority in determining reconsideration applications.

2 At paragraph 7, the majority held that the Tribunal's discretion to reconsider a decision "ought to be exercised only where there are compelling and extraordinary circumstances which make it appropriate to do so." In light of this, the majority enunciated certain factors that are useful in determining whether and/or whentheTribunaloughttoexercisethisdiscretion. In my opinion this approach is correct. I am cognizant, however, that as with any new statute, interpretation must be approached inanincrementalfashion. I am thereforeofthe view that although these tests are appropriate to be applied in this determination, theyare neither exhaustive nor all-encompassing.

3 While I agree with the generalapproachofthe majority, in applying the second factor to the facts of this case, I find it appropriate to entertain the application for reconsideration. The changed circumstances are such that there is reason to believe the decision should not stand.

5. In my view, the basis for the Tribunal's decision to deny PMSK's application to intervene at first instance was the fact that the issue before us was confined to the particular workplace in question. For instance, at paragraph 81 of that decision, we defined the issue before us as the proposals of a particular employer in a particular workplace, and not the gender neutrality of the Aiken Plan. In reaching our conclusions, we relied (at paragraph 88) upon ONA's request for relief, which I reproduce here:

A declaration that the comparison system adopted and proposed by the Respondent Employer is gender biased and unlawful in the circumstances of this case and cannot be the subject of negotiations or agreement. [emphasis added]

6. Due to the way in which the issue was framed before us, we concluded (at paragraph 126)

In our view, there is no reason to believe that a decision in this case regarding the Hospital's proposals for a comparison system would apply to other hospitals to which SKEW provides advice. As we have noted earlier, the issue of gender neutrality of a comparison system must be viewed within the context of a particular workplace.

4 Clearly therefore, the issue presented to the Tribunal at that time was precisely targeted at one bargaining unit and one employer. It was on that understanding of the issue, which I shared, that the application to intervene was denied.

8. Since the September 13, 1989 hearing, ONA has proceeded with twelve applications, alleging in each case that the Respondent hospitals have proposed a gender-biased comparison system so fundamentally flawedthatitisnotappropriateforpayequitynegotiations. The methodology proposed by the Respondent

hospitalsinalltwelvecasesistheAikenPlan,marketedbyPMSK. Further, ONA has alerted the Tribunal to the fact that they will continue to file applications with the same allegations for a number of hospitals which have proposed PMSK as a comparison system for their bargaining unit members.

5 Two of these applications will now. be heard together with the Women's College Hospital case. Therefore, the evidence and argument respecting the gender neutrality of both the comparison system in general and its application to Women's College Hospital will be presented together. It follows then, that theissue beforethe Tribunalcloselyapproaches the genderneutralityofthe methodologyofthe AikenPlan in general, irrespective of the particular workplaces at issue.

6 Moreover, when the Tribunal hears these three cases, it will be dealing with a situation which is representative of a great many hospitals in Ontario. At the last hearing date, PMSK hypothesized that the Women's College decision might have a profound impact upon current negotiations with its many other hospital clients. The majority notes that there are approximately 100 hospitals in Ontario which have purchased the Aiken Plan, and it is the methodology of that plan upon which ONA's attack is focused. Therefore, it would seem that we are no longer dealing simply with one employer's proposal for one workplace,but a proposal which is commonto the threehospitals beforeus,and directlyapplicable tothe vast majority in Ontario.

11. At paragraph 18 of the current decision, the majority writes:

Admittedly, there may be a perception that ONA is attacking the Aiken Plan in general ratherthanfocusingon individual workplaces and the comparisonsystemto be appliedto them.

7 Thus, themajorityhasrecognizedthatthefocusofONA'scasewillbeontheAikenPlan in general. Inlight of the nature of ONA's allegations concerning the gender neutrality of the AikenPlan, the factthat it sought to have those applications consolidated, and the fact that some of its applications will now be heard together, it is unrealistic to claim that the Tribunal's focus will remain on the particular workplaces in question. The majority is disregarding the practical exigencies and consequences of its decision.

8 For the reasons above, I hold that there has been a sufficient change in circumstances for the Tribunal to reconsider its decision to deny Peat Marwick's application to intervene.